Chairman Nadler Statement for Subcommittee Hearing on "Presidential Clemency and Opportunities for Reform"
Washington, March 5, 2020
Washington, D.C. –Today, House Judiciary Committee Chairman Jerrold Nadler (D-NY) delivered the following opening statement, as prepared, during a Subcommittee on the Constitution, Civil Rights, and Civil Liberties hearing on "Presidential Clemency and Opportunities for Reform":
"Although presidential clemency is commonly viewed as an occasional act of mercy, the Framers also understood that clemency is also necessary to the fair administration of justice. As Alexander Hamilton wrote in Federalist 74 regarding the clemency power, 'without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.'
"As such, presidential clemency should be a routine part of the federal criminal justice system. Unfortunately, over the past several decades, under both Republican and Democratic Administrations, the Executive Branch has failed to fully employ the clemency power to help remedy injustice, as the Framers intended.
"For example, after decades of mandatory sentencing policies and the so-called 'War on Drugs,' far too many nonviolent federal offenders—disproportionately people of color—sit in prison unnecessarily, serving unduly harsh sentences. And many others continue to face hardships after serving their time and seeking full reentry into their communities because of the collateral consequences caused by their federal convictions.
"Yet thousands of petitions for clemency remain pending with the Department of Justice’s Office of Pardon Attorney, to which the Executive Branch has customarily delegated the responsibility of processing candidates for clemency.
"Presidential administrations of both parties have been rightly criticized for deficiencies in the Department of Justice’s clemency process. In fact, our witnesses today all agree that the current process housed at the Justice Department must be reformed in order to increase the rate and diversity of clemency grants. Some critics of the current process even believe that it should be taken out of the Department of Justice altogether. I am pleased that this hearing will allow us to examine various proposals for reforming the clemency process.
"While the current DOJ process may be in need of reform, at least it is a process. Legitimate questions have also been raised about President Trump’s seemingly arbitrary approach to clemency, which seems to have completely bypassed the Department of Justice.
"To be clear, concerns that special access to the presidency plays a role in the granting of clemency are not unique to President Trump. His exercise of the clemency power over the past three years, however, has pointedly demonstrated that special access to the president is not just a factor in some clemency grants, but it may well be the only factor.
"Just last month President Trump granted clemency to 11 individuals. The New York Times reported that these recent clemency grants came about through 'an ad hoc scramble that bypassed formal procedures used by past presidents' and were 'driven by friendship, fame, personal empathy and a shared sense of persecution.' The Times also noted that all the recipients 'had an inside connection or were promoted on Fox News.'
"That is not to say that every recipient of a clemency grant by President Trump is undeserving of mercy or forgiveness. But we must put his clemency decisions in context.
"To the point of this hearing, while President Trump has made publicizing clemency grants a hallmark of his Administration, he has issued very few of them. According to one witness’s data analysis, he has granted only 24 out of 7,748 petitions received during his Administration or 0.3 percent of petitions. These numbers are exceptionally low, even when compared to the historically low grant rate of President Trump’s recent predecessors.
"While Congress has little authority over the President’s exercise of the clemency power, Congress does have the power to enact criminal justice reform measures. And I commend President Trump for joining with Congress to enact the First Step Act into law in 2018.
"That said, paving the way for more clemency grants does not lay in a process that depends almost entirely on special access to the White House. It is within President Trump’s power today to create a process that ensures clemency petitions are treated fairly as a routine aspect of the federal criminal justice system.
"To the extent that Congress can assist with this process, we should examine all options available to us.
"With that, I would like to thank the witnesses for appearing and I look forward to hearing your testimony today."